BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint case No.52 of 2017.
Date of Instt.: 23.02.2017. Date of Decision:14.12.2017.
Satbir Singh son of Sube Singh, resident of village Dhingsara, Tehsil and District Fatehabad.
...Complainant.
Versus
1.India Infoline Finance Limited (IIFL), Regd.No.B13-01792, Regd. & corporate office : 12A-10, 13th Floor, Parinee Cresenzo, C-38 & 39, G-Block Bandra Kurla Complex, Bandra (East) Mumbai through its Director/ Authorized Signatory.
2.India Infoline Finance Limited (IIFL), First Floor, Punjab National Bank, G.T.Road, Fatehabad, Tehsil and District Fatehabad.
...Opposite Parties/OPs.
Complaint U/S 12 of the CP Act,1986
Before: Sh.Raghbir Singh, President. Sh.R.S.Panghal, Member. Smt.Ansuya Bishnoi, Member.
Present: Sh.Aman Bhatti, Advocate for complainant.
Sh.Bhal Singh, Advocate for opposite parties.
ORDER
Complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred as Ops).
2. Briefly stated, the facts of the present complaint are that complainant had taken a gold loan of Rs.72,072/- on 29.09.2016 from the OPs and as security for repayment of the loan amount the complainant pledged 33.80 grams gold ornaments consisting one gold chain and gold bangle for the above said loan and similarly the complainant had taken the gold loan of Rs.98,098/- on 28.09.2016 and as a security of the repayment of loan amount the complainant pledged 46.30 grams of gold ornament of broad bangle and gold chain. All the aforesaid gold ornaments were put in the custody of OP No.2 and it was represented to the complainant that as and when the complainant will deposit the loan amount along-with interest, then gold ornaments will be released to the complainant by the OPs. The above said loan amount was disbursed to the complainant by the OP No.2.
2. It is further submitted that after some time the complainant visited the office of OP No.2 to deposit the loan amount of both the above said loans along-with interest, but the OPs delayed the matter of getting deposit the loan amount along-with interest on one pretext or the other. The OPs further assured to the complainant that there is no need of worry and no satisfactory response was given to the complainant whereas the complainant was in need of his gold ornaments and ready to deposit the loan amount along-with interest in the office of OP No.2.
3. It is further submitted that thereafter the complainant served a legal notice on 24.01.2017 through his counsel thereby calling the OPs to get deposit the loan amount of both the loans alongwith interest as per the norms and interest agreed and to release the gold ornaments of the complainant kept with OPs within 15 days from the receipt of this legal notice. However despite service of legal notice the OPs did not get the loan amount deposited along-with interest and also did not release the gold of the complainant. Thereafter the OPs flatly refused to get the loan amount deposited and to release gold ornaments of complainant kept with them.
4. It is further submitted that the above said act on the part of OPs amounts to deficiency in rendering service to the complainant and as such the complainant is entitled for returning his gold ornaments deposited with the OP along-with compensation. Hence, the present complaint.
5. On being served the OPs appeared and resisted the complaint by filing a joint written statement wherein the OPs submitted that the complainant had applied for a gold loan amounting to Rs.98,098/- for the purpose of Agriculture, Mode of Payment Cash, vide Gold Loan No.6864567, Scheme Retail Loan 1, simple interest rate 23.88% annual, default interest rate 6.00% per annum, interest payable on 28th of every month and complainant had similarly applied for second gold loan for an amount of Rs.72,072/- for the Purpose of Agriculture, Mode of Payment Cash, vide Gold Loan No.No.6872141, Scheme Retail Loan 1, Tenure 6 months, simple interest rate 23.88% annual, default interest rate 6.00% per annum, interest payable monthly on 29th of every month and complainant had duly executed agreements with the company for the same.
6. It is further submitted that thereafter the complainant did not come to the Branch after taking loan on a single time to deposit interest installments in the company against above said gold loans. The complainant intended to discontinue the agreement and did not deposit the interest amount as agreed as per terms and conditions of the agreement. The complainant after taking the above said loan completely ignored the terms and conditions of the agreement therefore the OPs contacted many times through telephone and in person at his house and requested him to deposit the amount, but the complainant ignored the same. Thereafter the OPs served two notice dated 16.12.2016 and in the above said notices the terms and conditions were duly explained and the information was given to the complainant regarding auction of gold ornaments pledged by the complainant as per terms and conditions of the agreements.
7. It is further submitted that the OPs had also published notice of auction of gold ornaments in ‘Jagat Kranti’ and ‘Business Standard’ Newspapers. However the complainant deliberately and knowingly did not give any response to the above said notices/publications. Thereafter the OPs by following the due process as per the terms and conditions of the agreements and completing all the required formalities auctioned the gold ornaments. Thereafter the OPs also sent a letter on 30.03.2017 regarding the balance amount of Rs.1373 in account No.GL6872141 and balance amount Rs.1023 in account GL6864567 towards the OPs of the complainant. However till date the complainant has not approached to the company and filed the present complaint only with the intention to grab the money from the OPs.
8. It is further submitted by the OPs that earlier to present account the complainant had other six accounts with the OPs regarding the gold loan. From the same it is evident that complainant was well aware with the terms and conditions of the agreement and he had deliberately and knowingly violated the terms and conditions of the agreement. It is also further submitted that action of the OPs by selling the pledged gold ornaments of the complainant in public auction is perfectly in accordance with the terms and conditions of the agreements and sustainable in the eyes of law. Therefore there is no deficiency on the part of OPs in rendering service to the complainant and the complainant has no cause of action to file the present complaint. It is also submitted that the complainant does not fall within the definition of Consumer as provided under the Consumer Protection Act, 1986. Moreover this Hon’ble Forum has no jurisdiction to entertain and decide the present complainant as there is an Arbitration Clause in the agreement executed between the parties and according to which the disputes between the parties have to be decided in accordance with the provisions of Arbitration and Conciliation Act, 1996. The OPs further prayed for dismissal of the complaint being devoid of any merit.
9. The complainant in evidence tendered his affidavit as Ex.CW1 wherein, averments made in the complaint have been reaffirmed. The complainant in support of his case also tendered in evidence documents Ex. C-1 to Ex.C-5. On the other hand Sh.Rajesh Kumar, Branch Manager produced his affidavit in evidence as Annexure R-1. The OPs also tendered in evidence the documents as Annexure R-2 to Annexure R-22 and closed their evidence.
10. The learned counsel for the complainant in his arguments reiterated the averments made in the complaint and further contended that the OPs sold the pledged gold ornaments of the complainant before expiry of the maturity date of the scheme i.e. six months. It is also further contended by the learned counsel for the complainant that before selling the gold ornaments of the complainant, no notice was issued by the OPs and as such the OPs violated the terms and conditions of the loan agreement. Therefore the complainant is entitled for refund of the gold ornaments pledged by him with the OPs along-with compensation of Rs.50,000/- on account of mental agony and physical harassment suffered by the complainant.
11. On the other hand the learned counsel for the OPs argued that action of the OPs in selling the gold ornaments of the complainant is perfectly in accordance with the terms and conditions of loan agreement and sustainable in the eyes of law. It is further contended by the learned counsel that due notices prior to the auctioning of the gold ornaments were issued to the complainant. Gold ornaments were auctioned in a fair and transparent manner by the completing all the required formalities. Therefore the present complaint is without any merit and the same is liable to be dismissed.
12. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record of the case file. It is the case of the complainant that the gold pledged by him in both the schemes was sold by the OPs prior to the maturity dates of the schemes and that too without giving any notice to the complainant and as such the said act of the OPs is in violation of the terms and conditions of the agreement. However we are of the considered view that the above said contention of the complainant is not tenable. It is not in dispute that installments of interest in both the schemes were to be deposited by the complainant on monthly basis. However from the account statement of the complainant Annexure R-18 and R-19 it is evident that even a single installment of interest was not deposited by the complainant after taking the gold loan. A perusal of the record further reveals that reason for not depositing the interest as per the scheme has not been explained by the complainant. It shows that the intentions of the complainant were not good.
13. Vide condition No.5(d) of the terms and conditions of the scheme/loan agreement the complainant has declared ad under:-
5(d) In case of any default in the repayment of interest/ installment/Principal Amount/ any other amount, charges, I authorize IIFL to sell all or any of my Pledged Articles in any order deemed favourable and most profitable by IIFL and recover the principal amount of the loan and interest along with costs, charges and all other amounts payable in respect of the Loan. In case of any deficiency after the above sale, I authorize IIFL and recover the amount from me personally. In case, I default in repaying the said deficit amount, IIFL shall have the right to initiate legal action against me to take possession and sell any /all the movable and immovable properties belonging to me;
Vide condition No.5(f) and 5(i) the complainant has further declared as under:-
5(f) In the event, I fail to settle the Loan or repay interest/ installments/ principal Amount/ any other amount, charges (“the Total Outstanding”), post of the completion of loan tenure or otherwise, IIFL shall issue the notice at my address given in this Application by giving 10 days time from the issue of the notice to me for repayment of the Total Outstanding. In the event, I fail to repay the total Outstanding even after giving 10 days notice for repayment, my Pledged Gold Articles may be sold by IIFL in a Public Auction as per IIFL policy. The reserved price for the pledged ornaments to be auctioned would not be less than 85% of the previous 30 day average closing price of 22 carat gold as declared by the Bombay Bullion Association Ltd.(BBA) or the historical spot gold price data publicly disseminated by a commodity exchange regulated by the Forward Market Commission and value of the jewellery of lower purity in terms of carats would be proportionately reduced. The national daily newspaper, if any of the Pledged Articles are sold at a price lower than the amount due from me, I shall pay the deficit amount to IIFL. In case default in repaying the deficit amount, IIFL has all the right to initiate legal action against me and take possession of any/ all he movable and immovable property belonging to me. If the Pledged Article are sold at a higher price than the amounts due from the surplus amount if any, may be refunded to me after adjusting all the other amounts payable by me to IIFL. If losses are incurred on sale, the same shall be reimbursed by me to IFL and in the event I am unable to make good such losses. IIFL may institute legal proceedings to recover the losses from my assets/property. IIFL shall not be responsible for any loss or costs incurred for selling the same if caused by such sale of Pledged Articles;
5(i) IIFL reserves the rights to sell any of the Pledged Articles by auction at any point of time, even before the expiry of tenure, if IIIFL is convinced that the market price or the maximum realizable value by sale of the Pledged Article is likely to come down blow or equal to the total amount payable by me, by way of principal, amount of the loan interest and other amounts payable in respect of the loan; after serving a notice of 10 days on me at my address given in this Application.
So vide the above said declaration the complainant has authorized the OP to sell the pledged gold in the above said circumstances by giving notice to him.
14. The above said terms and conditions duly signed by the complainant constitute contractual agreement and are binding upon the parties. A perusal of the record reveals that the action of the OPs in selling/auctioning the gold in question is in accordance with the terms and conditions of the scheme. Before selling the pledged gold the OPs have issued notices to the complainant and the same is evident from Annexure R-12, R-13 and R-14. It is also evident from Annexure R-15 and R-16 that before selling the gold the Public Notices of gold auction were published through two News Papers. Therefore it cannot be said that there was no fairness or transparency in selling the gold in question. Moreover the pledged gold of 22 carats has been sold at the rate of Rs.2668/- per gram and the same is as per the market rate prevailing at that time.
15. In view of the aforesaid discussion, we are of the considered opinion that the complainant has failed to prove any deficiency on the part of OPs in rendering service to him. Accordingly the present complaint is hereby dismissed with no order as to cost. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance
ANNOUNCED IN OPEN FORUM Dt.14.12.2017
(Raghbir Singh)
President District Consumer
Disputes Redressal Forum, Fatehabad.
(Ansuya Bishnoi) (R.S.Panghal)
Member Member
